4. NORMATIVE ANALYSIS OF THE SELF-DETERMINATION NORM
4.1. THE SELF DETERMINATION NORM AS A TEST FOR STATEHOOD LEGITIMACY
The self-determination norm gained wide recognition as a principle of international law when Woodrow Wilson addressed it in his speeches to acknowledge political will of peoples in the aftermath of World War I. But it was not until the end of World War II that the concept acquired status of a legal norm in the United Nation Charter in 1945 (Sterio, 2013). From then on the legality of the norm was affirmed through various UN resolutions. Sterio (2013) defines the self-determination as a legal right of international law allowing “people” to attain a certain degree of autonomy from its sovereign. The principle of self-determination was first embedded in a major treaty with adoption of UN’s Charter after the World War II in 1945 (Sterio, 2013).
This happened at UN’s founding conference in San Francisco. “In Article 1(2), the United Nations Charter provided that one of the purposes of this organization was “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (Sterio, 2013, p. 10). Interestingly, it was the Soviet Union that introduced the
“principle of self-determination” into the UN Charter. “This secured the Soviet Union the approval of the colonial regions” (Fisch, 2015, p. 191). However, the Charter did not impose direct legal obligations on member states, nor did it grant a right to minorities to separate from their “mother” states or the right for colonized peoples to achieve independence” (Sterio, 2013, p. 10). In spite of that, Roman (1998) notes how various resolutions of General Assembly adopted shortly thereafter “invoked the principle of self-determination and further explained its importance and applicability” (p. 946). For example, Roman (1998) explains how Resolution 545, adopted in 1952, is particularly significant because it recognizes “the right of peoples and nations to self-determination as a fundamental human right” (p. 946). Roman (1998) argues how progression of the self-determination from a principle to a fundamental right
“led to adoption, in 1960, of the Declaration of the Granting of Independence to Colonial Countries and peoples” (Roman, 1998, p. 946). This declaration proclaimed that it was
necessary to bring colonialism to an end in all its forms and manifestations (Roman, 1998).
However, although the 1960s declaration called for the end of colonialism still the Declaration was very clear in stating that any attempt “aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” (Kirgis, 1994, p. 306). Also, in 1966 the norm of self-determination was “espoused in two additional treaties: The United Nations Covenant on Economic, Social, and Cultural Rights and the United Nations Covenant on Civil and Political Rights” (Sterio, 2013, p. 11). Sterio (2013) notes how under the Covenants the right to self-determination attained new meaning “the right became a continuing one, an obligation on behalf of the Covenants’ member states to respect a people’s right to some form of democratic governance” (p. 11). The treaties made two different formats for the right of self-determination, one for non-colonized ethnic minorities and the other for colonized people. The treaties granted colonized people to freely decide their international status and political fate, they were free to form an independent state or associate with another state. However, the same rule did not apply to non-colonized peoples. They were entitled to establish a form of internal governance within mother state but not to seek independence. “Unlike non-colonized peoples, colonized ones could rely on the Covenants to exercise their right to self-determination and to seek a legal separation from their colonizer through remedial secession.” (Sterio, 2013, p. 11).
Kirgis (1994) notes how at first, the principle of self-determination was primarily understood and perceived as a freedom from colonial domination, “at least when domination is of people of colour in their homeland by other racial groups” (Kirgis, 1994, p. 305). Sterio (2013) explains how by 1970s the right to self-determination entailed the choice for colonized peoples to freely decide their future status. “If various ethnic groups lived in a single colony, their right to self-determination had to be exercised as a whole, with all ethnic groups uniting to a single
“self” that corresponded to the entire territory of that colony” (Sterio, 2013, p. 11). Sterio (2013) explains how within the context of decolonization the self-determination norm gave right to colonized people to form independent states in the place of former colonies. However, whether the governance of the new founded state was repressive and nondemocratic was not relevant to the self-determination principle (Sterio, 2013). In addition to that, Kirgis (1994) confirms how The International Court of Justice endorsed the principle in anti-colonialist form in its 1971 Advisory Opinion on Namibia and in its 1975 Advisory Opinion on Western Sahara,
“where it defined the principle as "the need to pay regard to the freely expressed will of peoples." (Kirgis, 1994, p. 305). “For many years, the majority of states in the UN General
the only face self-determination had” (Kirgis, 1994, p. 305). However, as Koskenniemi (1994) explains limiting the norm of self-determination to decolonisation seems arbitrary because the original notion developed over time was meant for universal applicability. Kirgis (1994) agrees while noting how the General Assembly in 1970, pressured by the West, expanded the concept beyond anticolonialism. “In its Declaration on Principles of International Law concerning Friendly Relations, the General Assembly said among other things that emergence into any political status freely determined by a people constitutes a mode of implementing the right of self-determination” (Kirgis, 1994, p. 305). The 1970s declaration discouraged any attempt which would dismember territorial integrity of governments accordant with values of freedom and equality and representative of “the whole people belonging to the territory without distinction as to race, creed or colour” (Kirgis, 1994, p. 306). As mentioned in previous chapter, this declaration is very clear in disclaiming attempts to disrupt territorial integrities of the states which comply to democratic values of non-discriminatory representativeness, but it does not however make the same disclaims about the states which might be authoritative and have discriminatory policies. Also, Sterio (2013) confirms how the 1970s Declaration defines the self-determination norm outside the decolonization context by stating how states “enjoy the right to territorial integrity, except if a state’s government does not represent “the whole people belonging to the territory without distinction as to race, creed or colour” (Sterio, 2013, p. 12).
Interpretating the self-determination norm through the 1970s Declaration means that states consolidate and guard their integrity against any action of dismemberment by respecting and representing peoples as a whole without any distinctions whatsoever. This view can prompt other scholars to conclude how “political legitimacy conjoined with the standard interpretation of the principle of national self-determination implies that, if the laws… are unjust enough to the people, then the people… have a right to secede, but if they are not sufficiently unjust, they do not” (Wellman, 1995, p. 147). In addition to that, for this thesis it is important to acknowledge that governance based on just laws, non-discriminatory policies and political representativeness is required in order for the norm of self-determination to be respected. In this way the right to self-determination has a much broader role outside the decolonization context because it can put political legitimacy of a state to the test. Also, values linked with the self-determination comprise “a standard of legitimacy against which institutions of government can be measured” (Anaya, 2004, 137). Sterio (2013) notes how subsequent UN declarations adopted in the 1990s, affirmed the right to self-determination for groups outside colonial context, including linguistic, national, or cultural groups (p. 12.) In addition to that, the Vienna Declaration adopted at the World Conference on Human Rights held by UN in 1993 disclaimed
all actions to disrupt the integrity of any government which is “representing the whole people belonging to the territory without distinction” (Kirgis, 1994, p. 306). The 1960s declaration protected and legitimized the territorial integrity of states unconditionally but the declarations from 1970 and 1993 tied their claims of protection concerning the territorial integrity to the condition related to democratic capacity of governments to represent all peoples without distinctions. In addition to this, Kirgis (1994) concludes that “if a government is quite unrepresentative, the international community may recognize even a seriously destabilizing determination claim as a legitimate” (p. 310). The progression of the meaning of self-determination through the legal framework presented here underpins the commitment of international community to democracy under which protection of the people’s rights is distribute equally. It seems that international law developed the applicability and content of self-determination by tying it to the government based on democratic principles. “Under this view, self-determination for non-colonized peoples entails a right to self-government within the larger mother state; inherent in such self-government is the idea of meaningful choice for any people to democratically elect its representatives” (Sterio, 2013, p. 13). Anaya (2004) argues how self-determination is extraordinary among human rights norms “in its concern with the essential character of government structures, a concern which may extend to the point of enjoying them to yield authority or territory” (p. 136). Anaya (2004) also notes how the meaning of self-determination extends from the core values of human freedom and equality
“expressly associated with peoples instead of states and affirmed in a number of international human rights instruments” (p. 136). In regard to that, self-determination should be understood as being universal in scope benefiting, not sovereign entities as such, but all segments of humanity (Anaya, 2004). Roman (1998) explains how self-determination is fundamentally enshrined in human rights precepts which treats people as equally entitled to control their own destinies. Based on principles of human freedom and equality the self-determination norm is
“at odds with colonial rule or similar forms of foreign domination” (Roman, 1998, p. 945).
Koskenniemi (1994) notes that there are even some theorists who regard self-determination as a legal-constitutional principle “that claims to offer a principal (if not the only) basis on which political entities can be constituted…” (p. 246) “The centrality of the State to the political order becomes comprehensible only if we regard it as the formal, political shell for which nationhood provides the substance” (Koskenniemi, 1994, p. 246). However, despite the notion that self-determination norm entails a standard of governmental legitimacy based upon human freedom and equality (Anaya, 2004) still the idea of self-determination as a justification of statehood is
(2004) explains how classical positivist writings had only accepted States as the “factual foundation of international law” (p. 246). The meaning of self-determination as a democratic precept and measurement of political legitimacy of the statehood is it odds with the fact that international law does not recognize a right to live under a democratic regime, “many states today are not ruled by democratic governments” (Sterio, 2013, p. 15). During the formulation of 1970s Declaration many states were worried about broad articulation of the self-determination norm because of the negative impact it could have on existing state boarders (Sterio, 2013). Sterio (2013) writes about the negotiation record during the 1970s Declaration passing and how it “shows that numerous states apprehended the creation of a general right of self-determination. In addition, the text of the Declaration demonstrates the ambiguity with which states viewed the right of self-determination outside the decolonization context.” (Sterio, 2013, p. 14). This view suggests how states do not recognize self-determination norm as a test to statehood nor a measurement of political legitimacy because international law does not recognize a right to live under democratic regimes as a requirement for legitimate statehood.
Furthermore, Grant (1998) notes how the Montevideo convention is often the most cited
“textual basis for statehood” (p. 413). The Montevideo convention on the Right and Duties of States is a treaty signed by nineteen states in 1933 at the Seventh International Conference of American States and since then it “has been a primary point of reference in efforts to define statehood.” (Grant, 1998, p. 414). In order for a political entity to be regarded and defined as a state the Montevideo Convention espouses several requirements: 1) permanent population 2) clearly defined territory 3) effective governmental control over territory state possess and 4) the capacity to enter into relations with other States (Davids, 2020). “At the crux of the Montevideo criteria lay the concepts of effectiveness, population, and territoriality” (Grant, 1998, p. 416) However, Davids (2020) argues that Montevideo criteria is not enough to provide a sufficient basis for statehood. Because if Montevideo criteria is all that matters for statehood, any warlord or group with enough force could carve out a new State simply by controlling a territory and population (Davids, 2020). In addition to that, Grant (1998) gives the example of UN declining to recognize Rhodesia, despite fulfilling all the Montevideo requirements, because it had laws based on a racial ideology. Furthermore, Davids (2020) thinks how if Montevideo criteria were enough to explain what makes a state it would encourage any group that wants their own state to assert control over land and population. One of the requirements for statehood can be a recognition from other states (Davids, 2020), however adding this requirement would blur the distinction between “what it takes to be a state and what it takes to get other states to recognize a state as such” (Grant, 1998, p. 445). This distinction is important
because it implies how Montevideo criteria for statehood were agreed upon because they are basically descriptive concepts derived from the characteristics of already established states.
However, if one political entity wants to gain recognition from other states it would not be enough for it just to resemble the physical and descriptive aspects of those states: territory, population, effective control, capacity to cooperate with other states. Although these physical and descriptive aspects do explain what it takes to be a state still they would not be enough for other states to decide whether to legitimize a statehood of some political entity or not.
Hypothetically speaking, even if Spain and Catalonia agreed on Catalans independence, Catalonia fulfils the Montevideo criteria and secedes, still UN member states would have much difficulties to recognize Catalonia in case it was based on discriminatory, racial laws or totalitarian regime repressing the lives of its population. This is because many states will inquire a governments treatment of its people in their decision about whether to recognize a potential new state or not. “The will of the people shall be the basis of the authority of government” (UN General Assembly, 1948). However, as Grant (1998) points out it is rarity in international politics that statements/treaties/resolutions on sensitive matters such as the definition of a state are modified and changed after being passed. The Montevideo Convention defines state narrowly, drawing only on physical aspects of existing states without mentioning a governmental treatment of its population as a possible criterion. Milenkovic (2013) argues how Weberian definition of the state as a monopoly of the legitimate use of violence has progressed into a definition of a state as a human cooperation whose function is to serve the common good in interest of public welfare. This progression has been supported and triggered by the internationalization of human rights. Archibugi (2003) claims how as a result of that “in the course of the last half century, we have seen progressive erosion of the oligarchic power that states had acquired in international politics” (p. 491). Archibugi (2003) suggests how the notion of people’s rights is in tension with sovereign states, especially if peoples seek secession under the banner of determination right, “but this does not necessarily imply that each self-proclaimed “people” should become a state” (p. 491). Even if states are not ideal political solution to serve the needs and rights of peoples (Archibugi, 2003) still the idea of redrawing the frontiers of states to make each state for each people is unthinkable. However, Archibugi (2003) argues how it should be “impossible to form a new state without preventively guaranteeing the rights of groups which, in the state to be, would constitute ethnic minorities”
(p. 498). To the same extant, states which are not respecting the rights of different ethnicities inside their borders would lose the legitimacy for their statehood. In addition to that,
limiting the secessionist/independence claims to colonial situations and otherwise “treating self-determination claims as claims for the advancement of human rights of the individual members of various national groups” (p. 257). As Archibugi (2003) argues the fight for territory might “become much less fierce if, before discussing the possible formation of new states or the modification of frontiers, the contending parties were to agree on guarantees designed to protect individual and collective rights.” (Archibugi, 2003, p. 498). How each state addresses and treats different political demands under the banner of the self-determination right is a test to its statehood legitimacy. All the different ethnic groups that have different political demands (secession, autonomy…) under the banner of the self-determination norm are still citizens of their “mother” state and their state should treat their rights to self-determination as any other demands and claims, “evaluating their validity according to realistic, functional and humanitarian measures” (Cass, 1992, p. 31). Understanding the self-determination norm as a test for statehood legitimacy is necessary theoretical precondition for defining the norm in terms fairness behind the veil of ignorance. But why should we define the norm of self-determination at all?